Carrel v. Medpro Group, Inc.

GRETCHEN B. CARREL, on behalf of herself and all other similarly-situated persons, Plaintiff,v.MEDPRO GROUP, INC., Defendant.

OPINION AND ORDER

THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT

This
matter is before the Court on a Motion for Conditional Class
Certification on FLSA Claim and Notice to Potential
Plaintiffs [ECF No. 18], filed by Plaintiff Gretchen B.
Carrel on June 10, 2016. Having also received the
Defendant's Opposition [ECF No. 26] and the
Plaintiff's Reply [ECF No. 28], it appears that the
parties agree that conditional certification is appropriate.
They also agree on most aspects of the Notice to Potential
Plaintiffs, with a few exceptions that the Court must now
resolve.

BACKGROUND

One of
the Plaintiff's claims in this litigation is that her
employer, MedPro Group, Inc., did not pay her overtime to
which she was entitled under the Fair Labor Standards Act
(FLSA). The Plaintiff alleges that the Defendant failed to
properly calculate her regular rate of pay for overtime
purposes when it did not include in her regular rate of pay
the bonus payments she received under the Defendant's
Long Term Incentive Plan (LTIP). The Plaintiff maintains that
the Defendant issued LTIP bonus payments to most of its more
than 500 employees over the past three years, and that
hundreds of these employees, like the Plaintiff, were
non-exempt and worked overtime. She alleges that the
Defendant has thus adopted a uniform policy or practice that
has deprived these employees the full amount of their owed
wages. The Defendant denies that its practice of omitting
LTIP bonus payments from the calculation of the regular rate
of pay for overtime purposes violates the FLSA. According to
the Defendant, its actions are legally permissible because
the LTIP bonus is discretionary.

The
Plaintiff requests conditional certification of a collective
action on behalf of similarly situated employees pursuant to
29 U.S.C. § 216(b). Additionally, she seeks
authorization to send court-approved notices to all the
Defendant's current and former non-exempt employees who
received LTIP bonuses in any year since 2013, and who also
worked overtime in that same year. To facilitate notice to
potential class members, the Plaintiff asks the Court to
order the Defendant to produce, within five business days, a
document in useable electronic form that discloses the names
and contact information of all potential plaintiffs.

ANALYSIS

The
FLSA provides: “[N]o employer shall employ any of his
employees who in any workweek is engaged in commerce . . .
for a workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the
hours above specified at a rate not less than one and
one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). The collective
action provision of the FLSA allows one or more employees to
sue on “behalf of himself . . . and other employees
similarly situated.” 29 U.S.C. § 216(b).
Collective actions under the FLSA are different than class
actions authorized by Federal Rule of Civil Procedure 23
because, in FLSA cases, the potential plaintiffs are given
notice and an opportunity to opt in, rather than notice and
an opportunity to opt out. 29 U.S.C. § 216(b) (“No
employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is
brought.”).

Courts
have described a two-step process for the management of FLSA
collective actions. In the first step, plaintiffs need only
make “a minimal showing that others in the potential
class are similarly situated.” Mielke v. Laidlaw
Transit, Inc., 313 F.Supp.2d 759, 762 (N.D.Ill. 2004).
“[A] court requires nothing more than substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan.”
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102 (10th Cir. 2001); see also Smallwood v. Ill. Bell
Tel. Co., 710 F.Supp.2d 746, 750 (N.D.Ill. 2010)
(“In order to be conditionally certified, plaintiffs
need only make ‘a modest factual showing sufficient to
demonstrate that they and potential plaintiffs together were
victims of a common policy or plan that violated the
law.'” (quoting Flores v. Lifeway Foods,
Inc., 289 F.Supp.2d 1042, 1045 (N.D.Ill. 2003))). If the
plaintiff makes this minimal showing, the class is
conditionally certified and notice is sent to potential class
members, giving them an opportunity to opt in. Heckler v.
DK Funding, 502 F.Supp.2d 777, 779 (N.D.Ill. 2007);
Mielke, 313 F.Supp.2d at 762. At the second step,
once the opt-in process is complete, the court conducts a
more stringent analysis of similarity. Heckler, 502
F.Supp.2d at 779.

At this
stage of the proceedings, the Defendant does not dispute that
the first step of the conditional certification standard has
been satisfied. The Defendant, however, has proposed changes
to the Plaintiff's proposed form of Notice “to more
accurately and fairly describe the case status, claims at
issue, and potential plaintiffs' options.”
(Def.'s Opp'n 1, ECF No. 26.) As stated above, the
Plaintiff is amenable to most of these changes, but a few
issues remain in dispute.

A.
Contents of the Notice

1.
Beginning Date for Proposed Class

The
proposed Notice, as modified by the Defendant, defines the
class to include the Plaintiff and “any non-exempt
employee who is or was employed by MedPro at any time since
[date on which the notice is approved], 2013, and who
received both overtime pay and an LTIP bonus payment during
any year between 2013 and the present.” (Notice 2, ECF
No. 28-1.) The Plaintiff initially proposed using January 1,
2013, as the relevant start date. The Defendant objected on
grounds that such a date would include individuals whose
claims fall outside the FLSA's three year statute of
limitations. The Defendant thus proposed using the date of
the Notice, as opposed to January 1.

The
Plaintiff indicates that she is willing to accept these
changes, “subject to a couple of important
caveats.” (Reply Br. 2, ECF No. 28.) The Plaintiff
notes that the Defendant's LTIP bonuses have typically
been paid in August. The Plaintiff suggests that, if the
Notice is issued after August 2016, that the beginning date
for the potential class members be tied to June 10, 2013,
which is three years before she filed her motion to certify
the conditional class.

The
Notice will obviously not be issued before August 2016-it is
already September. The Court finds that the Notice should
define the class using the June 10, 2013, date. Neither party
has developed arguments ...

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